Kshetriya Sri Gandhi Ashram vs Presiding Officer, Labour Court ...
2013 Latest Caselaw 1871 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                     AFR
 
                          						      Court No. - 1
 

 
          Civil Misc. Writ Petition No. 23868 of 2010
 
			Kshetriya Sri Gandhi Ashram
 
				              Vs.
 
 	    Presiding Officer, Labour Court and another
 
					     ******
 
Hon'ble Tarun Agarwala,J.

The petitioner has challenged the validity and legality of the award passed by the Labour Court directing reinstatement with back wages.

The facts leading to the filing of the writ petition is, that the petitioner is a registered charitable society, registered under the Societies Registration Act, which was founded in the memory of Mahatma Gandhi, father of the Nation. The petitioner Society runs on grant-in-aid, provided by the Central Government, the State Government and Gandhi and Village Industries Commission as well as contributions received by way of donation from individuals. It is contended that the petitioner Society is running on a 'no profit and no loss' basis.

The respondent was working as an Assistant in the petitioner's Society Centre at Nagina, District Bijnor at the relevant moment of time. His conduct and irresponsible behaviour, disobeying the orders of the superior officers and leading other workers to go on an illegal strike, etc. led the employers to issue various charge sheets from time to time.

On 28.8.1989 the workman was transferred from Dhamawala Store to Vikas Nagar Store, which he did not obey and remained on unauthorized leave for which he was issued a charge sheet. Another charge sheet dated 19.10.1989 was issued for disobeying the orders of the superiors and for not joining duty despite specific orders given by the superior authority. The workman was also charge sheeted for going on an illegal strike w.e.f. 5.10.1989 and restraining other employees of the Society from doing their work. On 26.10.1990, the workman was issued another charge sheet for going on unauthorised absence and taking away the keys of theVikas Nagar store,on account of which, the store could not be opened. No reply was given by the workman to the aforesaid three charges.

On 13.6.1991 the workman was again charge sheeted for refusing to obey the orders of the superior authority and not doing the work allotted to him. In this charge sheet it was also indicated to the workman that his past conduct vide earlier chargesheet dated 28.9.1989, 19.10.1989 and 26.10.1990 would be taken into consideration.

The workman submitted his reply to the charge sheet. Since the reply was not found satisfactory, a domestic inquiry was ordered, which was conducted and an opportunity was given to the workman to defend himself. The Inquiry Officer, after giving full opportunity to the workman, submitted an inquiry report holding that the charges stood proved against the workman. The competent authority, after considering the inquiry report and other mitigating circumstances and the past record of the workman, passed an order dated 21.12.1991 terminating the services of the workman. The workman, being aggrieved by the said order of the termination of his services raised an industrial dispute which was ultimately referred to the Labour Court in the year 1994.

The labour Court gave an award on 13.4.2002 holding that the inquiry was violative of the principles of natural justice and accordingly set aside the inquiry proceedings and, by the impugned award also directed reinstatement of the workman.

The petitioner, being aggrieved by the said award, filed Writ Petition No.40940 of 2002, which was allowed by a judgment dated 10.11.2004. The Writ Court held that once the Labour Court found that the inquiry was vitiated on account of violation of the principles of natural justice, it was imperative for the Labour Court to give an opportunity to the employers to lead evidence and prove the charges of misconduct in the event the employer raised such a plea in their written statement. The writ court found that such a plea was taken by the employers and accordingly set aside the award and remitted the matter back to the Labour Court to permit the employers to lead evidence and prove the charges.

Pursuant to the said order, the Labour Court heard the matter afresh and again passed an award dated 12.5.2009 directing reinstatement with continuity of service and back wages. The petitioner, being aggrieved by the said award, has filed the present writ petition.

Heard Sri Vijai Ratan Agarwal, the learned senior counsel assisted by Sri Vivek Agarwal and Sri Surya Prakash Singh, the learned counsel for the respondent-workman.

The Labour Court has allowed the claim holding that the charges levelled against the workman were vague and that the earlier three charge sheet could not be considered along with the fourth charge sheet. The Labour Court was of the opinion, that by not taking action on the earlier three charge sheets, the management waived its right to take any action against the workman on the said charge sheets. With regard to the 4th charge sheet, the Labour Court held that there had been a settlement between the management and the workers wherein it was agreed that no action would be taken against any employee pursuant to the illegal strike held by them inspite of which action was taken by the management against the workman for the illegal strike. The Labour Court accordingly held that the action of the management was violative of the settlement that was arrived at between the parties.

The Court after hearing the learned counsel for the parties and after perusing the award and the evidence brought before it finds that the award of the Labour Court cannot be sustained. The findings given by the Labour Court are per-se perverse and against the material evidence on record. The finding that the charges levelled against the workman are vague is patently erroneous. The charges are clear cut. Specific charges have been issued, which are neither vague and is very clear. Further, the Court finds that the plea regarding vagueness of the allegations made in the charge sheet should have been taken at the first instance when the charges were issued. The Court finds that no such plea was raised by the workman with regard to any of the charges. In fact the workman has not even filed his reply to the first three charges, which leads to an irresistible presumption that the workman had admitted his guilt. Once the workman participates in the inquiry and does not raise the plea about the vagueness of the charges, it is no longer open to the workman or to the Labour Court to hold that the charges were vague.

The finding of the Labour Court, that since action was not taken on the first three charges by the employers, the conduct of the petitioner in relation to the first three charges could not be considered and that the employers had waived its right by not taking any action on the said charges at an earlier stage. This finding of the Labour Court is patently perverse.

In State of Mysore vs. Manche Gowda, A.I.R. 1964 SC 506, the Supreme Court held that the disciplinary authority should inform the delinquent employee that it is likely to take into consideration the past conduct of the employee while imposing the punsihment unless the proved charge against the delinquent was so grave that it may independently warrant the proposed punishment. Similar view was taken again by the Supreme Court in Union of India and others vs. Bishamber Das Dogra, J.T. 2009 (9) SC 175.

In the instant case, the 4th charge sheet clearly indicated that the conduct of the workman in relation to the first three charges would also be taken into consideration. The employers clearly intimated the workman that his past conduct would also be considered and would be taken as a mitigating factor for imposing a penalty, if any. In the opinion of the Court, the Labour Court has misdirected itself on this issue.

The Court also finds that the settlement between the management and the employees related to the strike which was held on 9.11.1991 for which the management agreed not to take action against any of its workers. The 4th charge sheet related to the misconduct of the workman going on an illegal strike on 18.5.1991. Consequently, the finding of the Labour Court is per-se against the material evidence on record.

In the light of the aforesaid, the award of the Labour Court cannot be sustained and is quashed. The matter is required to be decided afresh.

The Court finds that 22 years have elapsed and the issue with regard to the validity and legality of the order of termination had not been settled finally as yet. This Court, during the course of the hearing, had directed the parties to explore the possibility of a settlement. The learned counsel for the workman candidly expressed that the back bone of the workman has broken and that he is not in a position to contest the matter any further, either before the Labour Court or the High Court. On the other hand, the learned counsel for the petitioner contended that the petitioner's organization is a charitable organization working on no profit and no loss basis and that there is no surplus or any contingency fund to pay back wages other than the dues, which are legally payable to the workman concerned.

During the course of hearing, the Court explored the possibility of valid dues that would be payable to the workman, if he had retired from service. In this regard, the learned counsel for the petitioner submitted that an employee who retires from service is entitled to receive the Provident Fund dues and contribution not only made by the workman but also the contribution of the employers along with welfare grants etc., which are given as post retirement benefits. The learned counsel submitted that he has been instructed to inform the Court that approximately a sum of Rs.1,83,000/- would become payable towards Provident Fund and other dues.

Considering the aforesaid fact that 20 long years have passed and no solution has been arrived, coupled with the fact that this Court has again set aside the award of the Labour Court and is of the opinion, that no useful purpose would be served in remitting the matter back to the Labour Court to redecide the matter afresh, the Court finds that the charges are not that grave, if proved, would lead to the dismissal or termination of the services of the workman. Considering the mitigating circumstances that has been placed before the Court, the Court is of the opinion, that the order of punishment of termination of the services is substituted by an order of compulsory retirement in the facts and the circumstances of the given case, which will not be treated as a precedent by the employers for other matters regarding other employees of their Society. By compulsory retiring the workman, he would be entitled for post retirement dues.

The writ petition is accordingly allowed with the aforesaid direction and with further direction that appropriate dues payable to the workman as indicated by the learned counsel, be calculated and disbursed to the workman within four weeks from today.

In the circumstances of the case, the parties shall bear their own cost.

Order Date :- 9.5.2013

AKJ

(Tarun Agarwala,J.)